Solent NHS TrustHigh quality community and mental health services

Equality Analysis


Date: April 2016

Title: Equality Analysis - Mental Health Act 1983: Code of Practice 2015

Author: Ricky Somal Equality and Diversity Lead

1. Introduction

1.1 Mental Health Act Code of Practice


1.1.1 A new Mental Health Act Code of Practice came into effect on 1 April 2015.


1.1.2 The main changes include:

·  Five new guiding principles (listed below)
· new chapters on care planning, human rights, equality and health inequalities
· consideration of when to use the Mental Health Act and when to use the Mental Capacity Act 2005, Deprivation of Liberty Safeguards and information to support victims
· new sections on physical healthcare, blanket restrictions, duties to support patients with dementia and immigration detainees
· significantly updated chapters on the appropriate use of restrictive interventions, particularly seclusion and long-term segregation, police powers and places of safety
· further guidance on how to support children and young people, those with a learning disability or autism 

1.1.3 The five guiding principles are:

· Least restrictive option and maximising independence Where it is possible to treat a patient safely and lawfully without detaining them under the Act, the patient should not be detained. Wherever possible a patient’s independence should be encouraged and supported with a focus on promoting recovery wherever possible.

· Empowerment and involvement Patients should be fully involved in decisions about care, support and treatment. The views of families, carers and others, if appropriate, should be fully considered when taking decisions. Where decisions are taken which are contradictory to views expressed, professionals should explain the reasons for this. 

· Respect and dignity Patients, their families and carers should be treated with respect and dignity and listened to by professionals.

· Purpose and effectiveness Decisions about care and treatment should be appropriate to the patient, with clear therapeutic aims, promote recovery and should be performed to current national guidelines and/or current, available best practice guidelines.

· Efficiency and equity Providers, commissioners and other relevant organisations should work together to ensure that the quality of commissioning and provision of mental healthcare services are of high quality and are given equal priority to physical health and social care services. All relevant services should work together to facilitate timely, safe and supportive discharge from detention.

1.2 This EA analyses the potential impact of the revised Code with due regard to the Public Sector Equality Duty (PSED) under section 149 of the Equality Act 2010.


2. Public Sector Equality Duty (PSED)


2.1 As a ‘public authority’ for the purposes of Schedule 19 to the Equality Act 2010, Solent NHS Trust has a duty under the Equality Act 2010 to have due regard to the following matters in the exercise of its functions:

· the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited by or under the Equality Act;

· the need to advance equality of opportunity between people who share a protected characteristic and people who do not share it; and

· the need to foster good relations between people who share a protected characteristic and people who do not share it.


2.2 The protected characteristics for the purposes of the PSED are: (i) age; (ii) disability; (iii) gender reassignment; (iv) marriage and civil partnership; (v) pregnancy and maternity; (vi) race; (vii) religion or belief; (viii) sex; and (ix) sexual orientation. The duty only applies to marriage and civil partnership as regards the first aim of the need to eliminate unlawful discrimination.


2.3 Having due regard to the need to advance equality of opportunity includes:

· remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;

· take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; and

· encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.


3. Human rights, equality and health inequalities


3.1 The Code includes a new chapter called Human rights, equality and health inequalities to address a range of concerns raised in relation to equality. This includes a requirement to:

· explain the relevant human rights and equalities legislation, including reasonable adjustments and health inequalities; and

· include a new requirement that all commissioners and providers must have a human rights and equality policy to monitor compliance with human rights and equality legislation, which must be reviewed at Board level at least annually. The Code sets out the framework for the policy, but it is for commissioners, providers and local authorities at a local level to determine what should be included in the policy and how any specific issues identified should be addressed.


4. Mitigating equality impacts

4.1 The mitigating actions can be grouped into six key areas that are relevant across all the protected characteristics:

· person-centred and involved assessment and care/treatment planning with due regard to the empowerment and involvement guiding principle;

· data – increase the amount and quality of both quantitative and qualitative data to assess, monitor and promote change;

· equal access to treatment, therapies and outcomes for patients;

· improve staff knowledge, attitudes, behaviour and training;

· care in line with the guiding principles (i.e. least restrictive, involves patients and, as appropriate, their carers, and promotes privacy, dignity and respect); and

· effective communication and representation so that the patient has information to make decisions in formats they understand and can be represented effectively through interpreters, IMHAs and legal representatives.

4.2 Embedding our Equality Standard


4.2.1 We aim to develop and ensure that equality is mainstreamed into everything we do.


4.2.2 We value equality, diversity and human rights (EDHR) and have set out our approach in our policies and practices with the aim of ensuring respect for all


4.2.3 We will:

Appendix 1. Equality Analysis

Appendix 2. Human Rights Framework

Appendix 1: Equality Analysis – at a glance


Protected Characteristic

Impact identified – DH Data and literature review


Males aged 18–35 were the most numerous group detained under the Act in hospital, while 36–64 year olds represented by far the largest age group (59%) on CTOs and the over-65s were a very low proportion of those on CTOs. This suggests that age may be important in influencing professionals’ decisions about the level of restriction someone should be subjected to.

Generally, more men than women are subject to detention under part 2 of the Act; however, in the 65 and over age group, more women than men were detained under part 2. This may reflect their longer life expectancy.

Fewer than 80 people under the age of 18 were detained under part 2; this was evenly split between males and females.69

There were also reported differences in the age profile of patients in NHS trusts and foundation trusts and independent sector providers, with the independent sector tending to have a lower age profile.


HSCIC. Mental Health Bulletin: Annual report from MHMDS returns – England 2012/13. 2013. pp.5, 10, 15–16.



The CQC has highlighted the lower life expectancy for people with a serious mental illness, noting that the average life expectancy is now 83 for women and 79 for men but for those with serious mental illnesses it is significantly lower: 69.9 for women and 64.5 for men. Detention under the Mental Health Act provides a window of opportunity to address this and to include physical healthcare as part of an overall plan.

A person with poor mental health that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities has this protected characteristic. A person detained under the Act is likely to have this protected characteristic for at least the period in which the person is subject to the Act.

People detained under the Act are disadvantaged in their access to physical healthcare compared with the general population.

Gender reassignment

Data has not been not identified indicating disparity in the use of the Act for this protected group compared with others who do not share this characteristic, although further engagement and consultation is required to identify experiences in access, experience and outcomes of services.


Marriage & civil partnership

Data has not been not identified indicating disparity in the use of the Act for this protected group compared with others who do not share this characteristic, although further engagement and consultation is required to identify experiences in access, experience and outcomes of services.


Pregnancy & maternity

Two important issues are highlighted, particularly in CQC reports relevant to pregnancy and maternity:

the first is access to specialist mother and baby units (MBUs) so that women are able to receive safe, effective and appropriate treatment.

the second issue reflects the article 8 right to family life and the recognition that mothers, and to some extent fathers and other children, are particularly disadvantaged by being placed in units out of area, and blanket rules that restrict contact (e.g. that prohibit the use of mobile phones etc).

Hospitalisation may have long-term repercussions not only for the mother but the whole family. Useful resources produced by the Social Care Institute for Excellence (SCIE) and Barnados’ outline good practice for parents with mental health problems, including the provision of family-friendly environments and approaches.


Rates of referral from GPs and community mental health teams were lower than average among some black and white/black groups, and referral from the criminal justice system was higher. Patterns were less consistent for other minority ethnic groups.

Detention rates have been higher than average among the black Caribbean, black African and other black groups in all six censuses, and almost consistently higher in the white/black Caribbean mixed and other white groups. Rates have been average for other minority ethnic groups. Detention rates were particularly high for black African (2.2 times higher), black Caribbean (4.2 times higher), other black (6.6 times higher) and other groups (2.1 times higher).

A consistent pattern was the higher than average detention rate under section 37/41 for black Caribbean and other black groups.

Although there have been annual fluctuations in seclusion rates, they have been higher than average for the black and white/black/mixed groups, and the other white group, in at least three of the six censuses. Other minority ethnic groups did not show high rates.

Black or black British ethnic groups had the lowest percentage of recorded episodes where patients were made subject to the care programme approach (CPA) on detention.

Minority ethnic groups do not compare unfavourably for other incidents. Rates of self-harm have consistently been lower than average among the black and South Asian groups. Very few ethnic differences in hands-on restraint, physical assault and accidents were observed across the different censuses, and they did not show a consistent pattern.

Length of stay is longest for patients from the black Caribbean and white/black Caribbean mixed groups, and shortest for patients from the Chinese and Bangladeshi groups.

There are higher than average rates for the use of CTOs for black and black British groups, and these patterns are evident for both men and women across age groups



Data has not been not identified indicating disparity in the use of the Act for this protected group compared with others who do not share this characteristic, although further engagement and consultation is required to identify experiences in access, experience and outcomes of services.

However, potential impacts may include suitable provisions (cultural/religious) for patients.



Data indicates some differences in relation to detention rates for men and women and in the use of community treatment orders (CTOs), although some of these are also related to different age profiles.

Men are more likely to spend time in hospital, either as an informal patient or subject to the Act, and be subject to higher levels of restriction using the HSCIC categorisation of sections of the Act that a patient can be detained under.

In particular, men were five times more likely than women to be subject to court and prison disposals (part 3 patients). This difference accounts for the largest area of difference in the figures between men and women. Men were also more likely to spend longer in hospital subject to the Act or as an informal patient.

Although more men than women are subject to detention overall, the following issues were identified by the literature review, and focus on privacy, dignity and safety issues for women:

Women may be subject to harassment and exposed to men who may take advantage of them, including in child and adolescent mental health services and in gender-specific wards, with continued breaches in terms of mixed-sex accommodation.

Gender-specific accommodation for sleeping, toileting, washing and during the daytime is an important measure in ensuring the privacy, dignity and safety of women but inappropriate use of mixed-sex wards in emergency situations has been noted.


Sexual orientation

LGB people are likely to report both daily and lifetime discrimination than heterosexual people. Stonewall has also indicated that there is discrimination in the NHS in relation to LGB people. Many LGB people have reported experiencing:

hostility or rejection from family, parents and friends

bullying and name-calling at school

rejection by most mainstream religions

danger of violence in public places

harassment from neighbours and other tenants

casual homophobic comments on an everyday basis

embarrassed responses (and occasionally prejudice) from professionals, such as GPs

no protection against discrimination at work, and

negative portrayal of gay people in the media.



Appendix 2: Human Rights Framework

1. Introduction


1.1 The Human Rights Act 1998 sets universal standards to ensure that a person’s basic needs as a human being are recognised and met. Public authorities should have arrangements in place to ensure that they comply with the Human Rights Act 1998, and it is unlawful for a healthcare organisation to act in a way that is incompatible with the Act. The Act urges public authorities to apply a human rights framework to decision making across public services in order to achieve better service provision.


1.2  The Care Quality Commission standard stipulate requirements related to human rights. The organisations core purpose of putting patients first embodies the principles of respecting human rights.


1.3 The Human Rights Act 1998 brought the European Convention on Human Rights into UK law. There are articles that are particularly relevant to the commissioning, employment and provision of healthcare services.


1.4 The equality benefits of a human rights based approach include:


· An improved quality of health services – patients treated with fairness, respect, equality and dignity.

· More person-centred care.

· A reduced risk of complaints and litigation.

· Improved decision making overall.

· A broader range of marginalised groups being involved and considered.

· More meaningful engagement of patients, carers and families. 

2. Purpose

2.1 The main purpose of the Act is:

· to establish a framework around the human rights based approach that puts the individual and the rights to which they are entitled at the heart of commissioning, employment and service delivery.

· to give guidance on the principles, duties and practice associated with a human rights value base.

· to promote a culture which respects dignity, equality and human rights?

· to empower and involve staff and patients in achieving the realisation of human rights principles.

· to enable the meaningful involvement and participation of all key stakeholders, including vulnerable groups.

· to ensure clear accountability throughout the organisation.

· to specify training and development for staff in relation to challenging discrimination, promoting equality and a respect for human rights. 

3. Key Responsibilities/Duties

3.1 The Chief Executive and the Senior Management Team are accountable and responsible, for ensuring that their policies and procedures considers Human Rights and that it is integral to the way the organisation manages existing commissioning, employment and services. The organisation will where possible ensure the development of new opportunities for promoting continuous improvement in their performance. Furthermore, they will be responsible for ensuring compliance with the Human Rights Act 1998.

3.2 Managers at all levels of the organisation will take positive steps to provide clear and visible leadership that promotes human rights as integral to the way the organisation delivers care and manages its staff. They will to their best ability take a lead role in establishing, promoting and maintaining a culture of respect and dignity.

3.3 All staff and volunteers will ensure that they operate at the highest standard of professional and personal integrity and for ensuring day to day actions and behaviours respect and protect the human rights of patients, service users, their carers and families and of those with whom they work. They are accountable for ensuring that the services provided by the organisation are compliant with the legislation.

3.4 The primary vehicle used to integrate and embed human rights into the organisation is the public sector equality duty, the equality strategy and Equality Analysis as part of developing policies and procedures.

3.5 All employees have a personal responsibility to respect all staff and to treat everyone they meet fairly, equally and with dignity and respect. Training in equality has been developed and established across the organisation.

4. Raising Concerns About Human Rights

4.1 Although the rights embodied in the Human Rights Act may seem simple and straightforward, in practice the position may be more complex. As far as UK Law is concerned it is only as particular issues come to court that there is any clarity about the interpretation of the law and therefore of whether something is or is not to be regarded as a ‘right’. It is accepted that rights can be conflicting e.g. the right to liberty may conflict with someone else’s right to safety. These cases often need to be interpreted and decided upon.

4.2 For these reasons the organisation is committed to fostering a culture where patients or their advocates can approach any member of staff and raise a concern. Whatever their concern is, they have a right for it to be considered and discussed with them and resolved where possible. This may be done at the time of raising the issue with a member of staff or by contacting the organisation’s Complaints Manager. Staff with concerns should raise these with their line manager, Human Resources or staff side representative and be met with the same consideration.

4.3 Any employee who suspects another employee to have contravened the document has the right to inform the organisation without fear of discrimination. The organisation will investigate any allegations using the Performance and Conduct Policy and serious breaches by employees may be considered to be gross misconduct, and may lead to dismissal. Where the issue remains complex and difficult to decide on, staff should seek further guidance from their senior managers.

4.4 The aim is, where appropriate, for staff concerns about human rights issues to be resolved informally between the individual and his or her line manager. If this is not possible or the concern has not been resolved, the individuals can raise this formally with the HR team. Alternatively, where a member of staff feels unable to raise their concern through their line management chain, concerns can be raised to the complaints team.

4.5 The organisation has developed a number of options for raising concerns, contained within the various policies such as Whistle Blowing policy.

5. Monitoring Compliance and Effectiveness

5.1 The complaints department will deal with complaints, compliments and serious incidents for evidence of any adverse trends.

5.2  Monitoring processes in line with statutory requirements and to ensure they cover all protected characteristics.

5.3  Provide specific equality, diversity and human rights training for all staff, with training for managers and document authors on equality analysis that covers the Human Rights Act.

5.4 The organisation will review the results of the National Patient Survey and the NHS Staff Survey

5.5 The equality and diversity team will publish an annual performance report on 1 July 2016 and annually thereafter.

6. Equality Analysis

6.1 The organisation has an equality analysis process which assesses services and employment policies to determine any adverse impact on the protected characteristics. The assessment will be in line with the Equality Act 2010 and other relevant equalities legislation.

6.2 Human Rights will be incorporated into the process and through effective training; staff will ensure that they apply the basic fundamentals of the equality legislation when carrying out the analysis.