Review of the arrangements for investigating the deaths of patients being treated for mental disorder

Findings - Independence, timeliness, and scrutiny

56. The purpose of investigation of deaths is to protect the right to life (Article 2 of the European Convention on Human Rights, Human Rights Act 1998) by:

• Securing the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility.^[14]
• Recognising a particular obligation to provide explanations for deaths in custody or detention, due to their vulnerable position and the authorities' duty to protect them.^[15]

57. Where people are detained under orders made under the 2003 Act or part VI of the 1995 Act they are considered to be in state detention.

58. A number of agencies can be involved in investigating the deaths of people being treated for mental disorder. However, the most common way these deaths are investigated is by means of NHS boards' significant adverse event review processes.

59. All NHS boards who responded to our survey reported following the HIS adverse events review framework when carrying out reviews. In order to comply with the requirements set out in Article 2, investigations should be independent of those implicated in the death. Evidence submitted to the review from staff suggested that there is often difficulty in securing that independence at a local level. However, any NHS board review cannot be said to be independent in the way that Article 2 requires, as it is not carried out by a body with institutional or hierarchical independence as well as practical independence.

60. As referred to in paragraph 30, HIS guidance requires that the review team should be sufficiently objective and that there should be no conflict of interest. The Review heard from carers and families who thought this was an issue. They felt that those investigating had insufficient independence from the service who provided care or treatment at the time of death and consequently they did not feel assured that an effective and proper investigation of their relative's death had been carried out.

61. Responses from the staff survey provided further detail on the possible reasons for the perceived lack of independence in reviews. There was some indication that pressure of time and staff availability was an important factor in determining who would be involved in reviews. Staff are often expected to carry out these reviews as an additional requirement to their day to day work. However responses suggested there is an understanding of the desirability for independence and external scrutiny. Respondents were able to provide examples of how this was achieved, to an extent, in some circumstances although it was not clear that this was always achieved reliably and consistently in practice.

62. Independence can mean different things to different people. The requirement of Article 2 is that the investigation is independent of the people and institutions implicated by the events under investigation. It is clear that many organisations recognise the importance of adverse event reviews being implemented with a degree of objectivity and independence of those involved in the events under investigation. However, it is also evident that in reality it can be difficult to secure this independence when staff have other competing demands. Where there is review by the HSE, Police or where a FAI is held, then that independence is assured, however as these investigations do not happen with all deaths of detained patients then that independence is not guaranteed in every instance, despite best efforts.

63. The carers and families survey highlighted wide and unacceptable variation in the time taken to carry out reviews. Timeliness was given as a reason by some staff for not involving families and carers in adverse event reviews. Responses indicated that between one to two years was an average timescale for reviews to be carried out. Reviews must be carried out in a timely manner, however this should not be used as an excuse to exclude families and carers from the review process.

64. Some health boards published anonymised versions of their adverse event review reports, however this practice has been largely discontinued. Publication of such reports in the interests of transparency does not meet the related aim of public reporting of learning and improvement action. HIS did routinely receive adverse event review reports relating to suicide and disseminate learning from their review of these under its Suicide Reporting and Learning System (SRLS). HIS has made changes to the SRLS which mean that from June 2017 it no longer requires suicide notifications or completed suicide review reports to be submitted. Instead, the SRLS requires learning summaries, where available, to be submitted for analysis to identify any themes which can be shared nationally. Although concerns were expressed during the Review about the effectiveness of the SRLS prior to June 2017, the requirement to notify HIS and subsequently submit copies of suicide review reports, provided the opportunity for external scrutiny.

65. Article 2 requirements for public scrutiny and transparency are not sufficiently met by current systems and processes.

It cannot be right that organisations are investigating themselves with their own staff when things go wrong. There should be a specialist investigation organisation that stands separate from the NHS staffed by skilled and well trained investigators from medicine, nursing, AHPs [allied health professions] and managers.
Staff Member

66. In response to the Scottish Parliament's Health and Sport Committee review of NHS governance, the Cabinet Secretary for Health and Sport stated that HIS has been asked to develop and bring forward a new approach that addresses unacceptable variations in the way that the adverse events review framework is applied by different NHS boards.^[16] The response also notes that the Scottish Government is in discussion with HIS about the development of a national reporting process covering a small number of specific harms in key clinical areas. This could usefully be linked with the reintroduction of the SRLS.

67. The Commission has extensive powers to investigate the care and treatment of people being treated for mental disorder (see paragraphs 42 to 44). It is independent of the Scottish Government. Feedback from surveys and discussion with carers, families and staff indicates that it is generally a well-trusted organisation. The Commission has the necessary powers and expertise to develop a system to investigate the deaths of those detained under the 2003 Act or the 1995 Act which would be proportionate with respect to the circumstances of the death and any other investigation or review which takes place. Where warranted, it could convene an inquiry for the purposes of an investigation and compel people to attend if necessary. The new system of investigation could be subject to standard timescales and publish any resulting reports (anonymised where appropriate) including any recommendations made to organisations. This would bring an improved level of scrutiny and transparency. It could also involve families and carers.

Summary of Findings

Deaths of people being treated for mental disorder are not investigated consistently in a way that can be guaranteed to be independent. Not all deaths are being investigated, especially so where they are not classed as unavoidable or unexpected, despite the fact that people can spend long periods of time subject to orders under the 2003 Act or part VI of the 1995 Act. Every death where the person was subject to an order should be subject to a proportionate level of review. The review process should be timely and should have a sufficient element of public scrutiny.

Actions

(1) The Scottish Government will ask the Mental Welfare Commission for Scotland to develop a system for investigating all deaths of patients who, at the time of death, were subject to an order under either the Mental Health (Care and Treatment) (Scotland) Act 2003 or part VI of the Criminal Procedure (Scotland) Act 1995 (whether in hospital or in the community, including those who had their detention suspended).

This process should take account of the effectiveness of any investigation carried out by other agencies and should reflect the range of powers the Commission has to inspect medical records, carry out investigations, and hold inquiries (as set out in sections 11-12 and 16 of the 2003 Act). The design and testing of the new system should involve, and be informed by the views of carers, families and staff with direct experience of existing systems. It should include appropriate elements of public scrutiny and should involve staff, families and carers. The new system should have clear timescales for investigation, reporting and publication.

(2) The Scottish Government will consider the further actions required to better support multi-agency co-ordination of investigations.

(3) The Scottish Government will begin an options appraisal in conjunction with partner organisations, to determine an appropriate process of review for the deaths of people who are in hospital on a voluntary basis for treatment of mental disorder. This will support delivery of action 10 in the Scottish Government's 'Suicide prevention action plan' to review every death by suicide and ensure the importance of clarity, alignment and integration of review and investigation processes for maximum impact.

(4) The Scottish Government will work with the Mental Welfare Commission for Scotland, Healthcare Improvement Scotland, and NHS National Services Scotland to identify an appropriate set of publicly reportable measures that reflect best practice in the investigation of deaths and can be used to identify where improvement is required.

(5) The Scottish Government will ask Healthcare Improvement Scotland to make changes to its Suicide Reporting and Learning System to immediately reintroduce the suicide notification requirement and scrutiny of NHS boards' suicide reviews. Healthcare Improvement Scotland will also be asked to describe how it will support boards to continuously improve the quality of the suicide review reports. There should be a clearer link between the scrutiny of these reports and specific improvement support that is directly designed and targeted around the common contributory processes identified in suicide review reports. This will be aligned to the new investigation process referred to in action 1.