The second professional and detention renewal: an exploration of a generic statutory role

Abstract

The amended Mental Health Act of 2007 introduced the generic statutory role of the second professional in the renewal of authority for detention, with the purpose of providing an additional safeguard for patients. Completed detention renewals from a National Health Service (NHS) Trust were systematically collected over 12 months (n = 47). Second professionals identified on Form H5 were requested to return a questionnaire designed to explore the role and the eligibility, knowledge base and attitudes of those fulfilling it, in comparison to the requirements as described in the code of practice and in relation to the stated purpose of the role. Twenty-eight second professionals completed questionnaires, giving a response rate of 60%. Several factors were identified which appeared to conspire against the notion that the aim of the role had been achieved in a meaningful way. The reasons underlying this included tokenistic statutory paperwork and a clear lack of specific training. Training needs identified included increasing legal knowledge and raising awareness of the ethical issues associated with a statutory role with a responsible nature. The findings challenge the assumption of readiness in those being asked to act in the generic statutory role of the second professional and highlight the potential for difficulties in the process of moving towards a cultural change of distributed responsibility in psychiatry, both in terms of the introduction of generic statutory roles in the absence of training and also with relevance to the changing nature of traditionally defined professional roles as suggested by new ways of working.

Introduction

Background

From an international perspective, facilitating multidisciplinary input into decisions regarding compulsory assessment and treatment is not new. In New Zealand, the 1992 Act has been described as signalling a shift away from the medical profession's discretion in making such decisions and heralding the development of a variety of generic statutory roles to facilitate multidisciplinary input.¹ One such role is that of the second health professional in New Zealand and their requirement to give second opinions in Judicial Reviews of detention.

In 2003, following an enquiry² into a serious incident (a judicial review had found a patient not to be mentally disordered and he was discharged from hospital and went on to commit a homicide), the role of the second health professional came under close scrutiny. The important and integral nature of this role was made clear and the need for a meaningful consultation and a properly formulated independent clinical opinion was highlighted. It also put on record the need for specific training for the role of the second health professional.³

In the UK in 2007, the Mental Health Act 1983 (the Act) was amended, with new legislation coming into effect in November 2008 and introducing generic statutory roles for the first time, with one such role being that of the second professional in the renewal of authority for detention under section 3 or 37 of the Act.

The ability of health professionals to effectively undertake such generic statutory roles has been the subject of discussion in both New Zealand and the UK and has been described as poorly understood and having a limited literature.^1,3 This limited literature was confirmed by a keyword search performed in early 2011, which utilized Internet search engines and used keywords such as second professional, statutory roles, detention renewal and training, but did not reveal the existence of any specific training opportunities for the role of the second professional in detention renewal, or any UK research papers, despite the role having been being fulfilled for over two years. Only one example of local policy development related to the role of the second professional was located.⁴

The role of the second professional

Under the 1983 Act, there was no explicit requirement for the responsible clinician (then the Responsible Medical Officer) to consult others before renewing a patient's detention. Although in practice, responsible clinicians may have already considered it to be good practice to consult multidisciplinary team colleagues on such a matter, this practice was formalized as a statutory requirement under the 2007 Act.

Responsible clinicians must now examine the patient and decide, within the two months leading up to expiry of their detention, whether the criteria for renewing detention under section 20 of the Act are met. They must also consult one or more other people who have been professionally concerned with the patient's medical treatment. If they are satisfied that the criteria for detention renewal are met, the responsible clinician must submit a report to that effect to the hospital managers. But before they can submit that report, they are required to obtain the written agreement of another professional (the ‘second professional) that the criteria are met.⁵

Eligibility for the role

The second professional must be professionally concerned with the patient's treatment and must not belong to the same profession as the responsible clinician.⁵ Although it is now possible for a responsible clinician to be allocated from a non-medical profession, this role is usually fulfilled by consultant psychiatrists – meaning that the professional concerned with the patient's medical treatment and identified as acting in the role of the second professional will be non-medical.

With the 2007 Act defining medical treatment as including nursing, psychological intervention, specialist mental health habilitation, rehabilitation and care,⁵ the pool of potential professionals eligible to be identified as acting in the generic statutory role of the second professional is correspondingly wide (and effectively includes any member of the multidisciplinary care team involved in the care and treatment of the detained patient concerned).

Detention renewal should therefore be formally agreed by at least two suitably qualified and competent professionals, who are familiar with the patient's case, from different disciplines (and so bring different, but complementary, professional perspectives to bear) and have been able to reach their own decisions independently of one another.⁵ The second professional should have sufficient experience and expertise to decide whether the patient's continued detention is necessary and lawful, have been actively involved in the planning, management or delivery of the patient's treatment and have had sufficient recent contact with the patient to be able to make an informed judgement about the patient's case having been satisfied that they have sufficient information on which to make the decision.⁵

Method

Questionnaire design

In line with the aims of the study, the questionnaire incorporated the available guidance for second professionals as contained in the code of practice⁵ and many questions were therefore directly correlated (see Table 3). With respect to the study's aim to explore the knowledge base of second professionals, it was also necessary to develop a specific question to address this component.

The criteria for detention renewal are necessarily defined in full as:

‘the patient is suffering from a mental disorder of a nature or degree which makes it appropriate for the patient to receive medical treatment in a hospital; it is necessary for the patient's own health or safety or for the protection of other persons that the patient should receive treatment and it cannot be provided unless the patient continues to be detained under the Act; and that taking into account the nature and degree of the mental disorder from which the patient is suffering and all other circumstances of the case, appropriate medical treatment is available to the patient.’⁵

In order to allow these criteria to be represented in a question format which could then be marked to give a baseline of knowledge, it was thought necessary to simplify them. One mark was therefore awarded for each of the three criteria identifiable in a simplified form, for example: a mental disorder of a nature or degree (1), a risk to self or others (1) and appropriate medical treatment is available (1).

In order to elicit any further information related to the use of open-ended questions, space was given for additional comments to be made. These were then collated as a list of direct quotations per question. Although comments were examined for evidence of patterns or themes, formal thematic analysis was not used. A cover letter was used to confirm the research nature of the questionnaire and to request anonymous return.

Sample

In consultation with research governance leads, ethical approval was not deemed to be required. No sponsorship was received.

In the 12 months which followed the legislation coming into effect, all completed detention renewals were collected from a single National Health Service (NHS) Trust (Devon Partnership NHS Trust serves a large geographical area with a population of more than 850,000 people and provides a range of mental health services). Detention renewals were identified from databases held by Mental Health Act Administrators and the corresponding clinical notes were located and hand-searched to recover the statutory paperwork (Form H5). For each detention renewal, it was therefore possible to identify the named second professional who had signed the agreement that the criteria for detention renewal were met.

Results

From November 2008 to November 2009, there were 47 detention renewals, with 100% agreement between responsible clinicians and second professionals as recorded on Form H5. Data analysis revealed a range of settings where detention renewals had occurred (Table 1) and a spread of different professional disciplines acting in the role of the second professional (Table 2).

Table 1

Settings for detention renewal

Setting	Number (%)	Section 3	Section 37
General adult (acute)	5 (11)	5	0
General adult (rehabilitation)	6 (13)	6	0
Old age	4 (8)	4	0
Learning disability	1 (2)	1	0
Forensic	31 (66)	20	11
Total	47	36	11

Table 2

Details of second professionals

Profession	Number (%)
Nursing	35 (75)
Social work	6 (13)
Psychology	3 (6)
Occupational therapy	3 (6)

Of the 47 second professionals identified, 28 responded (response rate of 60%). The numbers responding ‘yes’ or ‘no’ to each question were recorded, written comments were noted and in the case of question four, the content of responses was marked (Table 3).

Table 3

Questionnaire responses (n = 28)

Question number	Yes (%)	No (%)
1. Do you consider yourself to be sufficiently experienced and possessing the expertise to decide whether the patient's continued detention is necessary and lawful?	27 (96%) Comments: see Table 4	1 (4%)
2. Have you had any training for making decisions about detaining patients since the role of the Second Professional was introduced in the amended Mental Health Act?	10 (35%)	18 (65%)
3. Are you aware of any resources available to mental health professionals to support them in this role? If yes, please identify them	13 (46%) Comments: journal articles, supervision, keeping up to date	15 (54%)
4. Can you identify the three main criteria for detaining an individual in hospital under the Mental Health Act?	3 from 3: 19 (68%) 2 from 3: 3 (11%) 1 from 3: 4 (14%)	0 from 3: 2 (7%)
	Average: 2.39	Range: 0–3
The 3 criteria (not shared with the respondents) were simplified, e.g.
(a) A mental disorder of a nature or degree
(b) A risk to self or others
(c) Appropriate medical treatment is available
5. Are you actively involved with the planning, management and delivery of the patient's care, with recent contact allowing an informed judgement?	28 (100%)	0 (0%)
6. Did you have sufficient information to decide whether or not to renew the patient's detention?	28 (100%) Comments: access to notes frontline care attendance at clinical reviews	0 (0%)
7. Did you reach your decision independently of the Responsible Clinician?	26 (92%)	2 (8%)
8. Have you ever found yourself in disagreement with the opinion of the Responsible Clinician? If yes, what happened next?	10 (35%) Comments: Patient discharged	18 (65%)
9. Does fulfilling the role of the Second Professional have any clinical implications for your role within the multidisciplinary team or otherwise?	4 (14%) Comments: see Table 6	24 (86%)
10. Are you happy to be consulted as a Second Professional in the future?	28 (100%)	0 (0%)
11. Having been consulted as a Second Professional, would you advise a colleague consulted in this role for the first time?	28 (100%) Comments: see Table 5	0 (0%)

Qualitative findings

Ninety-six percent considered themselves to have sufficient experience and expertise to decide upon detention renewal. Analysis of the written comments indicated that these considerations were based upon the individual clinical experience of the second professional (echoing a previous finding that 86% of second health professionals in New Zealand identified clinical experience as their source of knowledge³) and/or an extensive knowledge of the patient concerned (Table 4).

Table 4

Sufficient experience and expertise

Individual clinical experience

I have had extensive experience of attending Tribunal and Manager's hearings, and giving feedback from a nursing perspective

I have been qualified and working on this site for six years

I have 30 years experience as a Nurse, knowledge of the Consultant, and have kept up to date with changes in the Act

Knowledge of the patient

I have known (the patient) for several years

Due to the nature of the client's mental health difficulties, I feel the renewal was appropriate

I have worked with (the patient) and this allows me an informed impression of his mental health, and an ability to form a balanced opinion on benefits to mental health against the least restrictive option

Role satisfaction appeared high with 100% identifying themselves as happy to be consulted as a second professional in the future and many endorsing this sentiment by offering advice for a colleague consulted in this role for the first time (Table 5).

Table 5

Advice

Understand the responsibility and implications of both your actions

Make a balanced decision based on your own knowledge/skills. Seek information if necessary

Tempting as it may be, avoid the inclination to be swayed by the Responsible Clinician and the rest of the MDT – their opinions add to the information base and remain an aid only

Only agree to do it if you have experience of the patient in question

Don't be afraid to voice your opinions or concerns

Fully understand the case and the relevant sections of the Act

It is important that you have detailed knowledge of the patient's history: diagnosis, risks, offences, progress since admission, response to care/treatment and the level of engagement with the care plan

Only agree if you feel competent. If you are unsure, seek supervision

Eighty-six percent identified no clinical implications for having acted in the role of the second professional with the majority of accompanying written comments expressing a positive sentiment. Of the 14% who did identify implications, the sentiment expressed was negative (Table 6).

Table 6

Sentiments associated with the role

Positive

I feel more respected for being asked

It is part of being fully involved in all aspects of high-quality care delivery for my patients

I am able to justify and give legitimate reasons for all decisions I make, and am able to explain them to the patient and the team

Negative

I would like some training

I have had difficulties in explaining the role to the patient

Discussion

Limitations

The sample size was small and this affects generalization of the results. While this is likely to be related to the sampling of a single trust, further research may be indicated to establish the possibility that detention renewal may not be a major part of clinical workload in mental health services overall.

With the responses being anonymous, it was not possible to comment definitively on the representation levels of the professional disciplines involved, although the numbers of those responding translates to a likely minimum of 50% being from the nursing profession (previous research has found that nurses are the most likely to be asked to act in a statutory role³). It was also not possible to explore whether those identified as being most in need of training (as defined by a low score to question 4 for example) had a corresponding high degree of awareness that training was required.

Statutory paperwork

Although the statutory paperwork showed 100% agreement between responsible clinicians and second professionals, it was noted that there was no designated space on Form H5 for a second professional to register disagreement were this to occur. In a similar vein, while it could be considered helpful to explicitly reproduce the full legal criteria for detention renewal above the box requiring the signature of the second professional as confirmation of their agreement, there was an absence of space to record a process of consideration or evidence independence in reaching this decision, with second professionals effectively directed to sign their agreement.

The statutory paperwork for other generic statutory roles has been criticized as lacking space for contextual comments and being an essentially bureaucratic response to what is a complex clinical and professional issue.³ This observation had relevance to this study, with the design of the statutory paperwork seeming to set the tone for a process with an apparent tokenistic quality, which did not seem to be in keeping with the purported safeguarding purpose of the role.

Degree of independence

Although 92% reported independent practice, it could perhaps be considered that as long as the second professional identified is from within the same clinical team as the responsible clinician, meaningful independence may be hard to achieve (and would certainly not be comparable to the external scrutiny and safeguarding powers which already exist in the form of Mental Health Tribunals in the UK, or Judicial Reviews in New Zealand, for example).

Variations in clinical practice by the responsible clinician may also exist, for example using multidisciplinary discussions to inform decisions and in the process of doing so, becoming aware of convergent or divergent views held on detention renewal and thus the potential for the identification of a second professional holding a similar view to their own. Although this could be conceived as a dilemma, one respondent commented simply ‘I am not sure a second professional would be asked, if it was known that they disagreed with the responsible clinician’.

Nature of the role

There seems to be little doubt as to the responsible nature of the role, as detention renewal is a significant further incursion on liberty and non-renewal removes the legal framework around treatment and can precipitate discharge. The code of practice seems to reinforce this by stating that the decision of the second professional should be accepted, even if the responsible clinician does not agree with it and only in exceptional circumstances can the agreement of a different second professional be sought and if, as a result, a renewal report is made, this decision should be drawn to the attention of the hospital managers.⁵ Some local policy has also highlighted this difficult area of consideration by stating that a decision by a second professional not to agree to the renewal does not bring the current period of detention to an end before it would otherwise have expired, although the responsible clinician should consider whether they should discharge the patient from detention.⁴

Although in this study there was a finding of 100% agreement between second professionals and responsible clinicians, 35% of second professionals reported having had previous disagreements, including over detention. Although these disagreements had evidently not occurred while acting in the statutory role of the second professional, it effectively highlighted the potential that exists for disagreement.

Generic statutory roles are considered to challenge professionals to critically reflect on both the conceptual and ethical basis of their practice and the tension between the need to protect therapeutic relationships at the same time as discharging legal responsibilities.³ In this study, 86% considered there to be no implications for acting in the role, which did not appear to suggest that a process of reflection previously described as necessary was occurring.

Preparation for the role

Generic training for mental health professionals has been regarded as a way of underpinning good practice in mental health and has led to the development of a framework known as the Ten Essential Shared Capabilities.⁶ These are considered to be minimum capabilities that all staff working in mental health services should possess, having achieved them as best practice during prequalifying training.

Several of these have relevance to the role of the second professional, including knowledge of policies, practices and procedures concerning the implementation of mental health and related legislation, an up-to-date knowledge of current practice and participation in lifelong learning and continuing professional development.⁶

By introducing statutory roles that are generic, it effectively assumes that all professionals are equally prepared, having had equal levels of clinical exposure and professional training. In this context, it may therefore be considered to be both unfair and inadequate that when the generic statutory role of the second professional was introduced, it was done so without the provision of specific training having been identified or stipulated as necessary, either before or after the introduction of the role (65% of second professionals reporting having received no training for the role and of the 35% who did, none could identify anything specific, replicating a finding in New Zealand where 77% reported having received no preparation for the generic statutory role of the second health professional prior to its introduction³).

Training

The responsible clinician is likely to be a senior professional and in the case of consultant psychiatrists (who represented the entire cohort of responsible clinicians in this sample), subject to additional training leading to approval by the Secretary of State under section 12(2) of the Act. The need for specific training for the second professional appears to have been overlooked, with the implication being that it would have been unnecessary.

While it is acknowledged that being able to demonstrate an appropriate level of individual clinical and professional experience and/or an extensive knowledge of the patient concerned is of great value and part of the eligibility criteria for the role, it is not clear that without access to appropriate education and training, this can equate to an ability to perform a statutory role in an effective and meaningful manner.

Educational innovations for professionals acting in statutory roles have been described as needing to focus on the clinical domains of communication skills, ethical reasoning and legal knowledge and skills,¹ and this model would appear to have relevance to this study.

With respect to the knowledge levels of the criteria necessary for detention renewal, second professionals scored an average of 2.39 from a possible 3.0, but also demonstrated a wide variability in their knowledge range as a group from 0–3 (68% identified all three criteria, 11% two, 14% one and 7% none), suggesting a training need in the domain of legal knowledge. Only 14% identified any implications for acting in the role, suggesting a training need in the domain of ethical reasoning also.

Training fit for purpose and in line with the original aim would be expected to deliver an improved level of specific (legal) knowledge, exposure to ethical and clinical issues with the development of reasoning and a more robust awareness of the powerful nature of the role.

The development and delivery of appropriate training for generic statutory roles has been found to be possible and effective after evaluation,¹ although the cost implications are unknown. Although clearly a poor second, the absence of funded specific training provision may see a belated need for the development of alternative educational strategies (harnessing the current proliferation of individual electronic learning packages to include specific training for the statutory role of the second professional as part of the induction and annual appraisal processes, for example).

Conclusion

The ability of health professionals to undertake generic statutory roles has been described as poorly understood,¹ with some authors describing a consensus that statutory roles can only be assumed and effectively undertaken with substantial educational input.³

Although a high degree of professional acceptance was a positive finding for a role which is statutory (100% were happy to act in the role again), this outlook deserves to be accompanied by education and training in order to fairly equip professionals undertaking generic statutory roles that have demonstrable levels of responsibility and accountability. Introducing such roles without making adequate training provisions appears to undermine noble aims and it has been noted that social interests (such as safeguards) cannot be served when those enacting the legislation are expected to assume statutory roles with no training and without the benefit of contextual written guidance.³

It was therefore unsurprising that an exploration of the generic statutory role of the second professional (which did not have educational input prior to its introduction) highlighted specific knowledge deficits and an apparent under-awareness of the associated ethical issues. Ultimately, this finding challenges both the assumption that professionals are ready to undertake statutory roles, or that they are as generic as the role apparently expects.

As psychiatry enters into an era of changing expectations of traditionally defined professional roles and moves towards a model with a cultural aim of distributed responsibility such as that suggested by new ways of working,⁷ the issue of training provision is likely to become increasingly important.

Although there is an increasing opportunity and expectation for professionals to endorse statutory roles as part of their practice, a lack of specific education and training has the potential to leave professionals unfairly and uncomfortably exposed. Rather than assuming the readiness of professionals to take on statutory generic roles and other expansions of their professional responsibilities, education and training must be given a high priority, particularly where it concerns critical decision-making in mental health practice and in order to be fair to both professionals and patients alike.

Footnotes

ACKNOWLEDGEMENTS

The authors thank Jane Mardel, Kay Broome and David Godley for their support with the data collection.

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