Public Consultation Response

Keith Campbell

NIPSA Branch 730 Response to Public Consultation – Draft Revised Code of Practice on the Mental Health (Northern Ireland) Order 1986

About NIPSA

    NIPSA is the largest public service trade union in Northern Ireland. In the context of this consultation, NIPSA is the main trade union representing Approved Social Workers (ASWs) employed by Health and Social Care Trusts in Northern Ireland. NIPSA represents ASWs working under the Mental Health (Northern Ireland) Order 1986 and has a direct interest in ensuring that statutory guidance supports safe practice, fair accountability, and sustainable workforce arrangements.

    NIPSA also has a direct interest in ensuring that responsibility for the delivery of safe and effective services, lies where it should – with the DOH and the HSC employers, who have overall responsibility for the safe implementation of the Order and in ensuring that HSC staff are provided with the right supports to undertake this function.

    About NIPSA Branch 730

      This response is submitted on behalf of NIPSA Branch 730, which represents members within the Belfast Health and Social Care Trust (BHSCT) including all practising Approved Social Workers (ASWs) during the day, as well as all ASWs in the Regional Emergency Social Work Service (RESWS).

      In recent years, NIPSA and Branch 730 have prioritised health and safety initiatives and industrial action to address persistent issues arising from insufficient commissioning of psychiatric beds by the Strategic Planning and Performance Group (SPPG). This shortfall has resulted in protracted waits, placing ASWs in situations that compromise both their professional role and the welfare of service users.

      These circumstances have created strong concerns from ASWs around the rights of individuals to receive timely medical treatment as defined in the Order, and the statutory role of the ASW. It is the view of NIPSA and our members that this falls outside the intended scope and responsibilities of the ASW role.

      Introduction and Overall Position

      NIPSA welcomes the opportunity to respond to the consultation on the draft revised Code of Practice for the Mental Health (Northern Ireland) Order 1986. Important levels of care and attention are evident throughout the consultation document. This reflects the involvement of many individuals and organisations.

      NIPSA Branch 730 welcomes the focus of ensuring that the rights of the individuals the Order applies to, are at the centre of this document. As a trade union we believe all individuals being assessed/detained under the order, must have proper access to the best service possible. We fully acknowledge the often-distressing circumstances individuals are facing when the Order applies. We welcome the principle of least restrictive intervention, and the focus on care planning and support, in all circumstances where the threshold for detention is not met.

      In relation to the draft consultation document, it is complex and multi-layered. Given this, in this response, our focus is on those sections and processes involving delivery of the Approved Social Work function. Other workstreams that may impact on the definitive version of the Codes of Practice, such as Right Care Right Person and further implementation of the Mental Capacity Act, are not our primary focus. It would be NIPSA’s intention to respond and contribute to the development of these and any other related areas of work in this area as they reach fruition.

      As outlined in the document, Approved Social Workers undertake critical statutory roles at interfaces where issues of mental health crisis, human rights legislation, and public protection are often in tension. The safe discharge of the duties associated with this role have long demanded a highly skilled and specialist workforce.

      Over the past number of years, the inherent challenges in this role have been delivered in conditions of exceptional service pressure. The delivery failure of the Ministerial ten-year mental health policy, compounded by the commissioning deficits of the SPPG, mean that workforce shortages, reduced acute in-patient bed capacity, prolonged waiting times for conveyance, and limited community alternatives for people in acute mental distress, are all having increasing impact on the safe delivery of ASW functions.

      Whilst welcoming many aspects of the consultation paper, NIPSA is concerned that, as currently drafted, the revised Code of Practice places disproportionate responsibility and risk on individual ASWs, while failing to adequately recognise:

      • The scale of current systemic pressures
      • The corresponding responsibilities of employers and Health and Social Care Trusts.
      • The limits of individual professional control

      Without amendment, the Code being consulted upon, inadvertently risks shifting liability for system failures onto individual practitioners, exposing ASWs to unacceptable professional, regulatory and employment risk.

      Article 40 Duties and the Concept of “Most Appropriate Way”

      The draft Code reiterates the requirement under Article 40 that an ASW must make an application where they are satisfied that this is the “most appropriate way of providing care and medical treatment” (p35/36)

      NIPSA is concerned that the Code does not sufficiently acknowledge how this judgement must be exercised in the context of inadequate guidance on:

      • Lack of commissioning of required psychiatric beds.
      • Limited community alternatives to support those in crisis.
      • Delays in assessment or admission including protracted waits.
      • Overall significant resource constraints (as outlined above re. Mental Health Strategy).

      The absence of guidance on how ASWs should weigh defined statutory duties against well–known and persistent system failures, creates a risk that ASWs’ decisions will be judged retrospectively and without proper contextualisation.

      From a trade union perspective, this exposes ASWs to potentially unreasonable scrutiny and blame for outcomes arising from service deficiencies that are outside their control.

      Conveyance and Transfer – Responsibility Without Authority

      The draft Code repeatedly states that, following an application, the ASW is responsible for arranging conveyance and is “ultimately responsible” (p54) for ensuring lawful and humane transfer to hospital.

      NIPSA wishes to be clear that ASWs:

      • Do not control ambulance availability or response times.
      • Do not control police attendance or thresholds.
      • Do not control staffing levels.
      • Do not control hospital bed availability.
      • Do not control timely access to medical care.

      Despite this, the language of the Code assigns ultimate responsibility to individual ASWs, without equivalent clarity regarding the accountability of Trusts (the employing authority) or partner agencies (NIAS, PSNI).

      This framing is a significant concern for NIPSA. There must be clearer language used to ensure responsibility for specific roles is shared. NIPSA fully accepts the decision for admission to hospital for medical treatment lies with the ASW, but it is our view the document places ASWs in a position of responsibility without authority, significantly increasing the risk of individual liability for failures arising from inter-agency or systemic failures of process. 

      Article 130 and Places of Safety

      The draft Code states that where an individual is detained under Article 130, there remains a requirement for ASW interview and for care and treatment plans to be “put in place”. Whilst this can and does happen, NIPSA does have concerns this is too broad a statement and needs to be clearer.

      In practice, ASWs frequently have limited influence over:

      • The suitability of the place of safety.
      • Availability of medical staff.
      • Access to alternatives to admission.
      • Safe onward care arrangements.

      The expectation that ASWs can “put in place” care and treatment plans in these circumstances risks creating unrealistic professional expectations and exposes ASWs to criticism for matters beyond their control.

      NIPSA suggests that a clear duty is built into the draft code of practice to construct a care and treatment plan and responsibility for its implementation is placed upon HSC bodies for all service users meeting the threshold of requiring in-patient assessment. We would add that we would be of the view there should be a requirement that such a plan be operationalised before the current requirements for a protracted wait (i.e. six hours post assessment wait) are triggered. ASWs are expected to intervene quickly, but in reality, waits for medical assessment or a psychiatric bed can leave ASWs managing unsafe situations. It is NIPSA’s view that responsibility needs to be realigned with the responsible HSC Trust and system rather than onto the ASW.

      Alignment with NISCC Codes of Practice

      NIPSA is concerned that the draft Code does not sufficiently align with the NISCC Codes of Practice for Social Workers, particularly in relation to:

      • Managing risk proportionately.
      • Recognising limits of competence.
      • The duty to challenge unsafe systems.

      The NISCC Codes explicitly recognise that social workers operate within organisational contexts and should not be held individually accountable for systemic failures. The draft Mental Health Code does not adequately reflect this principle. For example, NIPSA has repeatedly heard from ASW members that they have often felt completely responsible for the safety and welfare of individuals experiencing an acute mental health crisis. This is further compounded out of hours, when there is a markedly different ability for ASWs to access additional resource, which is more accessible during daytime hours (daytime defined as Monday-Friday 9am-5pm).

      That there has been a significant shift in ‘siloed working’ since the pandemic must be acknowledged in the codes and a more collective “shared responsibility” approach taken. ASWs have repeatedly said to NIPSA that their role is to “assess and convey” – yet there is little acknowledgement of this professional view within the revised paper. ASWs are not medical practitioners.

      NIPSA remains of the view that timely access to treatment is a human right, and too often this has not happened. ASWs have had to spend hours and on occasions days on end, with acutely unwell individuals requiring unavailable medical care. By restating the role of ASW’s is indeed to “assess and convey” with the associated responsibilities and accountability around this, the paper will place responsibility for the welfare of acutely unwell patients where it belongs – with those responsible for ensuring that legally mandated acute care is made available in a timely manner. That is HSC Trusts and the Department of Health.

      The paper, as it is currently proposed, creates a misalignment and regulatory and professional risk for ASWs within the context of their professional codes of practice.

      Agency and Trust Accountability

      While the draft Code references escalation procedures and inter-agency cooperation, these references are general and non-directive, in contrast to the prescriptive language used in relation to ASW duties.

      NIPSA notes the absence of explicit statements that:

      • Employers (Trusts) retain corporate and vicarious responsibility for service delivery.
      • ASWs should not be held individually accountable for lack of resources.
      • Professional decisions must be judged in the context of prevailing system pressures.

      This omission is a significant concern for workforce protection.

      NIPSA also notes the Memorandum of Understanding (MOU) (p16), between Agencies. NIPSA is of the view this MOU should be reviewed on a regular basis and made available to all ASWs and parties to ensure there is clarity of role and purpose both between workers and agencies.

      NIPSA Recommendations


      NIPSA calls for the final Code of Practice to:
      1. Explicitly state that ASWs are not responsible for systemic service failures, including delays arising from lack of psychiatric beds, staffing or transport.
      2. Strengthen employer and Trust duties, including:
      Clearer escalation processes.
      Named senior decision-makers.
      Clear organisational risk ownership.
      3. Rebalance language to avoid assigning “ultimate responsibility” to ASWs where they do not have operational control.
      4. Clarify that professional judgement must be assessed in context, not retrospectively or in isolation.
      5. Explicitly align the Code with the NISCC Codes of Practice, recognising limits of competence and ethical conflict.
      6. Affirm protection for ASWs who raise concerns or decline unsafe working conditions without appropriate support.

      Conclusion

      ASWs play a vital statutory role in safeguarding individuals and the wider public. A Code of Practice must support safe, ethical, and defensible practice, not inadvertently transfer the risks of a system under-resourced due to commissioning failures onto individual workers.

      Without amendment, NIPSA believes the draft Code risks:

      • Increasing professional and employment liability for ASWs.
      • Undermining workforce morale and retention.
      • Deterring social workers from undertaking or continuing in the ASW role.

      NIPSA urges that these concerns are addressed prior to finalisation of the Code. NIPSA would welcome continued engagement with the Department of Health to ensure the Code supports safe, lawful, and sustainable ASW practice.

      This concludes NIPSA’s response.