Mental health first aid bill ‘not particularly well thought through’

The Mental Health First Aid Bill has not been properly thought through and could cause unintended and negative consequences. That’s the warning from a number of mental health first aid experts who have urged Conservative MP Dean Russell to amend his private members bill. 
It is currently at the second reading stage in the House of Commons.
People Management reports on this and quotes three Mental Health First Aid England board who shared an open letter on LinkedIn addressed to Russell, expressing their concerns with the bill stating that mental health first aid is ‘only one piece of the jigsaw when effectively managing and supporting mental health in the workplace’. They say there is a risk of firms using the new legislation as a tick box exercise whereby they train a few people on first aid and assume that’s mental health dealt with, rather than looking at how to support workplace mental health in its entirety. The also highlight the potential vulnerability of the mental health first aider which they say has not been properly considered.

A reminder of the employer’s duty. Under the Health and Safety at Work etc. Act 1974, employers have a duty of care to their employees which includes mental health and well-being. That includes undertaking a risk assessment and reporting any workplace factors that may contribute to or worsen an employee’s mental health. So, where does mental health first aid fit into that? It’s a question I put to health and safety specialist, Zoe Betts:

Zoe Betts: “Yes, mental health first aiders is our one piece of the jigsaw, if I can put it like that. They are not a means to an end, it’s not a one-size-fits-all. I don't want employers to get the message that so long as you've sent a couple of people on a course and they've got the ticket, that they're a trained mental health first aider and that is all the organisation needs to do in order to effectively manage stress in the workplace. It's one element, and it's a valuable element. I'm not trying to say that it isn't. I'm not trying to undermine, in any way, the validity or the usefulness of having mental health first aiders. It’s absolutely vital that employees have somebody to whom they can talk in confidence, who hey can raise their concerns, or their issues, with knowing that there'll be supported. We're reducing the stigma around mental health, and they will be signposted to professional support and some resources that the organisation is prepared to fund, but my baseline position is this has to be a whole organisation approach. It is tempting to focus solely on mental health first aiders and believe that that is all that's needed, and my view is that is one control measure that would ultimately come out of a suitable and sufficient risk assessment that will look at much wider factors and will result in control measures that go far beyond mental health first aiders. We ought to be trying to adopt the ‘prevention rather than cure’ approach. What you'd like to do is manage stress in the workplace so that people don't become stressed, don't become ill, and therefore don't need the services of a mental health first aider.”

Joe Glavina: “Another of the concerns which has been raised is the need for strong enforcement action by the regulator, the HSE, but, as I understand it, I don’t think there have been any prosecutions by the HSE in this area. Why is that?”

Zoe Betts: “Well, no, I think you're right. I think there's a bit of difference here between the rhetoric and the reality. I think the HSE at times give the impression that there could be strong enforcement and potential prosecutions in this area. I think the reality is that we're a long way away from that. Recent statistics showed that the number of traditional, if I can put it that way, safety prosecutions following incidents causing bodily injury in the workplace, those prosecutions have reduced significantly year on year.

So, the reality of there being a movement towards an increased number of prosecutions for mental health issues is a reality that I don't really see coming down the line. I think it's difficult from an evidential perspective for the HSE to build that case that an employer has put somebody's mental health at risk. Mental health is multifactorial, it's very complex, but I think what we also need to acknowledge is that prosecutions are only one weapon, if I can put it that way, in the HSE’s armoury. There are notification of contravention letters that go alongside a fee for intervention if they believe there is a material breach in the organisation's health and safety procedures and, equally well, there could be - another level up - an improvement notice which would, perhaps, say you are failing to manage stress in the workplace, you've got a specified period of time in which to rectify that and, if you don't, that is a criminal offence. So, that's still a serious measure. An improvement notice still goes on the HSE’s website as a kind of black mark for five years on the company's record and, of course, even apart from those measures, even if the HSE do not get involved at all, if an organisation is failing to manage mental health in the workplace it will know about it, and it will pay the price, because there'll be reduced productivity, there'll be low morale, there'll be increased levels of sickness and absence from work. That, of course, has a high cost when you're looking at replacing workers on a permanent or a temporary basis. You might have a fantastic person in your team who leaves your employment because they simply can't cope, they've got a mental health condition. That's devastating, potentially, to that team or that business and, of course, there's also other litigation costs. If it’s not a criminal prosecution, there's every chance there could be an employment tribunal or a civil claim. So, there's a number of different drivers really from a moral and a commercial perspective for employers to get this right.”

Joe Glavina: “Last point, Zoe. This open letter raises a couple of other points. Concern over the vulnerability of first aiders and also potential liability for employers where they know about a mental impairment but don’t act on it correctly.”

Zoe Betts: “Yes, I would agree with both of those points, actually. Linked but, equally, a little bit different. The first point they're making there, which I completely agree with, is you have to be very careful as an employer that you are not trying to reduce one risk that inadvertently increases another. Of course, if you are training somebody to be a mental health first aider they are going to be exposed to potentially very sensitive, quite complex and, potentially, disturbing information imparted to them by fellow employees. The quality of the training is important here, but so is the supervision for that mental health first aider. What do they do with the information that is given to them? How do they cope with that? The reality here is that you could have an employee confiding in a mental health first aider that they're suicidal. That is a tremendous burden on that mental health first aider’s shoulders. 
They've got to be able to process that information, provide appropriate support, understand the difficult distinction between keeping somebody's confidence and actually escalating that issue if it really is a matter of life or death and, depending upon what they've been told, they then might need to decompress and to impart that information on to somebody else so that they can receive the support that they need. So, you risk assess your employees’ mental health, but I would suggest you also risk assess the systems you've got in place for your mental health first aiders. The second part of the question that you've asked me there is where an employer is on notice, or has specific knowledge, of a condition pertaining to a particular employee and we had a recent case that's gone through the courts relating to a large organisation in the retail sector where an employee was known to have epilepsy, a risk assessment had been done, some control measures had been implemented but some hadn't and, tragically, three months later, he suffered a seizure at the top of a flight of stairs fell down and passed away. The case went to trial but, ultimately, the defendant company was convicted, and it was found that the company hadn't done enough. Having known about that epilepsy condition, the risk assessment had been done but some of the control measures had not been implemented because the risk assessment hadn't really been reviewed or taken seriously enough, hadn't been acted upon promptly enough, and it was therefore found that the employer was guilty of health and safety breaches because there was more that reasonably could have been done. In fact, the evidence showed there was no reason for that individual to be going upstairs at all, he’d had seizures before and was therefore foreseeable that this kind of incident could happen. So, I think if you relate that to other kinds of health conditions, including mental health, an employer would need to really work collaboratively between health and safety professionals and HR professionals to make sure that everybody is aligned, is on the same page, and is working to keep that employee safe when they're at work or, potentially, when they're returning to work after a period of health-related absence.”

That open letter to MP Dean Russell is discussed in some detail in People Management’s article on this which is well worth reading. We have put a link to it in the transcript of this programme.

LINKS
- Link to People Management article: ‘Mental health first aid bill could cause unintended and negative consequences, experts warn’